C.O. (COMM.IPD-TM) 150/2021 Page 1 of 27

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.O. (COMM.IPD-TM) 150/2021

M/S SITA RAM IRON FOUNDRY AND ENGINEERING

WORKS .....Petitioner

Through: Mr. Ajay Amitabh Suman, Mr.

Shravan Kumar Bansal, Mr. Rishi

Bansal, Mr. Rishabh Gupta, Mr.

Pankaj Kumar and Mr. Deepak

Srivastava, Advocates.

Mob: 9990389539

Email:

amitabh@unitedandunited.com

versus

HINDUSTAN TECHNOCAST (P) LTD. AND

ANR. .....Respondents

Through: Ms. Radhika Bishwajit Dubey, CGSC

along with Mr. Vivek Sharma,

Advocate for Registrar of

Trademarks.

Mob: 9810982923

Email: radhika.arora21@gmail.com

Mr. Rohan Jaitley, CGSC with Mr.

Dev Pratap and Mr. Varun Pratap

Singh, Advocates for UOI.

Mob: 9355665877

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

JUDGMENT

% 09.07.2025

MINI PUSHKARNA, J:

1. The present petition has been filed under Sections 47, 57 and 125 of

the Trade Marks Act, 1999 (“the Trade Marks Act”), seeking

C.O. (COMM.IPD-TM) 150/2021 Page 2 of 27

cancellation/removal from the Register of Trade Marks, the trademark

“BADAL” (“impugned mark”) registered on 15

th

February, 2000, under

application no. 554483 in Class 07 in favour of the respondent no. 1, i.e.,

Hindustan Technocast (P) Ltd., with the date of application being 15

th

July,

1991, and a user detail of 01

st

January, 1945.

2. As recorded in the order dated 18

th

January, 2022, the present petition

has been received from the Intellectual Property Appellate Board (“IPAB”),

consequent to its abolition and upon promulgation of the Tribunals Reforms

(Rationalization and Conditions of Service) Ordinance, 2021.

3. This Court notes that the counsel for respondent no. 1 had last

appeared before this Court on 29

th

May, 2023, and despite repeated

opportunities provided to the respondents, no reply was filed on behalf of

the respondents. Therefore, vide order dated 15

th

September, 2023, the right

of the respondents to file their reply, was closed.

4. Subsequently, as recorded in the order dated 09

th

July, 2024, counsel

for respondent no. 2, i.e., Trade Marks Registry, submitted that the

respondent no. 2, being a proforma party, was not required to file any reply

to the present petition.

5. This Court vide order dated 12

th

November, 2024 had also issued a

Default Notice to the respondents, however, a perusal of the office noting

shows that the respondent no. 1 was un-served with the noting “unserved as

not under jurisdiction”. Upon insistence of learned counsel appearing for

the petitioner that respondent no.1 had earlier been appearing before this

Court, and was aware of the present proceedings, and that there was no need

C.O. (COMM.IPD-TM) 150/2021 Page 3 of 27

for issuance of any further notice to respondent no.1, this Court proceeded to

hear the present matter.

6. The present rectification petition has been filed consequent to an

application under Section 124 of the Trade Marks Act, filed by the petitioner

herein which was allowed vide order dated 24

th

May, 2019, in a Civil Suit

filed on behalf of respondent no. 1 herein. The said suit, bearing no.

CS/10/2015 has been filed by respondent no. 1 herein, before the District

Court, Jind, Haryana, with a claim of infringement and passing off of its

registered mark, „BADAL‟. The said suit has been filed by respondent no. 1

against five defendants, with the petitioner herein, being defendant no. 2.

7. Further, it is noted that the other defendants in the said suit, i.e.,

defendant nos. 1 and 3, i.e., M/s. B.K. Steel Industries and M/s. Dewan

Engineering Works, have filed two other rectification petitions before this

Court bearing nos. C.O. (COMM.IPD-TM) 74/2021 and C.O. (COMM.IPD-

TM) 164/2021, for the rectification of the impugned trademark “BADAL”,

against the respondent no. 1 herein. A perusal of the order sheets in the said

matters show that the pleadings therein are at an advanced stage.

8. The case, as set up in the present petition by the petitioner, is as

follows:

8.1 The petitioner company is a partnership firm which has been carrying

on business under the name of M/s. Sita Ram Iron Foundry and Engineering

Works, presently engaged in the business of manufacturing and marketing of

Toka machines, which are used to cut and shred fodder.

8.2 The petitioner herein is the proprietor of the trademark

“GHANGHOR BADAL” registered on 13

th

January, 2017, bearing

C.O. (COMM.IPD-TM) 150/2021 Page 4 of 27

registration no. 2611791, having the date of application as 14

th

October,

2013, in relation to the goods under Class 07 pertaining to „TOKA‟ and has

been continuously using the said trademark since 15

th

April, 2002.

8.3 The petitioner has been extensively carrying on the business under the

aforesaid registered trademark and the goods of the petitioner are distributed

in major parts of the country.

8.4 The said goods and business bearing the trademark “GHANGHOR

BADAL” are highly demanded in the market on account of their standard

quality and precision. Therefore, business and goods under the said mark are

identified by the consumers at large as originating exclusively from the

petitioner‟s source and has ultimately become distinctive indicium.

8.5 The petitioner‟s goods under the mark “GHANGHOR BADAL” due

to its continuous use, has acquired tremendous goodwill, sale and reputation

in the market.

8.6 On account of satisfaction of the petitioner‟s proprietary rights in the

aforesaid trademark, the Registry of Trade Marks, on 08

th

August, 2016, had

advertised the same in the Trade Marks Journal no. 1757-0. Although, the

Examination Report as issued by the Registry of the Trade Marks had cited

the impugned registered mark “BADAL” bearing application no. 554483 of

the respondent no. 1 as an objection, however, the said objection was

subsequently overruled by the Registry of Trade Marks, upon receipt of the

reply to the said Examination Report by the petitioner.

8.7 Respondent no. 1, in the present case, is the registered proprietor of

the impugned trademark “BADAL” bearing application no. 554483 filed on

C.O. (COMM.IPD-TM) 150/2021 Page 5 of 27

15

th

July, 1991 in Class 07, which pertains to chaff cutter machines, wheat

threshers, centrifugal pumps, etc.

8.8 Respondent no. 1 has filed the Civil Suit, bearing no. CS/10/2015

before the District Court, Jind, Haryana, alleging infringement of its

trademark “BADAL”, and other formative trademarks by five different

entities. Respondent no. 1 herein, in the said suit, has pleaded that the mark

“GHANGHOR BADAL” of the petitioner herein is deceptively similar to its

alleged trademark “BADAL”.

8.9 In the aforesaid suit filed by it, respondent no. 1 herein claims to be

the owner of the registered mark “BADAL”, bearing application no. 554483,

by way of the alleged Assignment Deed dated 12

th

April, 2011. However,

respondent no. 1 received the impugned registration in its favour by playing

fraud upon the Registrar of Trade Marks.

8.10 Defendant nos. 1 and 3 in the said Civil Suit bearing no. CS/10/2015

pending before the District Court, Jind, Haryana, i.e., M/s. B.K. Steel

Industries and M/s. Dewan Engineering Works, have also filed two

rectification applications before the erstwhile IPAB (now pending before

this Court) seeking cancellation of the impugned trademark “BADAL”,

bearing application no. 554483.

8.11 In view of the said rectification applications, the petitioner herein,

along with the other defendants in the suit, filed an application under Section

124 of the Trade Marks Act, praying for stay of the suit proceedings. The

said application was duly considered and allowed by the District Court, Jind,

Haryana, vide its order dated 24

th

May, 2019, thereby, staying the

proceedings in the Civil Suit bearing no. CS/10/2015, to await the outcome

C.O. (COMM.IPD-TM) 150/2021 Page 6 of 27

of the rectification proceedings pending before the IPAB, and now, before

this Court.

8.12 Petitioner, in the last week of July, 2019, came across the fact that

one, Mr. Anil Kumar, who has been carrying on his business from the same

address as that of the respondent no. 1 had filed a cancellation petition for

cancelling the registration of the trademark “GHANGHOR BADAL” on the

basis of the registration of the impugned mark “BADAL”.

8.13 However, neither Anil Kumar nor the respondent no. 1, have any

locus to initiate any proceedings against the petitioner‟s registered mark

“GHANGHOR BADAL” . Further, in the aforesaid cancellation petition,

Anil Kumar has nowhere stated nor filed any documents to substantiate as to

how he is the owner and proprietor of the registered trademark “BADAL”.

8.14 As per the records available on the Trade Marks Registry website, the

impugned trademark “BADAL” is registered in favour of respondent no. 1.

However, respondent no. 1, itself, has wrongly and illegally been entered as

registered proprietor of the mark “BADAL” in the records of the Registry of

the Trade Marks.

8.15 The impugned trademark “BADAL” was originally applied for

registration on 15

th

July, 1991 by Mr. Iqbal Singh Sehmbey, Mr. Sukhminder

Singh Sehmbey, and Mr. Tejinder Singh Sehmbey, carrying on business as

partners of the partnership firm, i.e., M/s. Jodh Singh Sehmbey and Sons at

G.T. Road, Goraya, Punjab.

8.16 Further, M/s. Jodh Singh Sehmbey and Sons filed a Form TM-16

dated 16

th

June, 2006 before the Registrar of Trade Marks for amendment of

the TM-1, i.e., application for registration of trademark “BADAL”, stating

C.O. (COMM.IPD-TM) 150/2021 Page 7 of 27

that the applicant partnership firm was owned by the Hindu Undivided

Family (“HUF”) of S. Gurmeet Singh Sehmbey, whose Karta is Mr. Iqbal

Singh Sehmbey, and by error three partners of the said HUF were shown as

the partners in the TM-1 application. However, no order was passed by the

Registry of the Trade Marks in this regard.

8.17 On the same date, i.e., 16

th

June, 2006, Mr. Iqbal Singh Sehmbey,

claiming to be the sole proprietor of M/s. Gurmeet Singh Sehmbey and

Sons, filed a Form TM-24, seeking to record the alleged assignment of the

impugned trademark in his favour on the basis of Assignment Deed dated

25

th

May, 2006, thereby, assigning the mark from M/s. Jodh Singh Sehmbey

and Sons to himself, as Mr. Iqbal Singh Sehmbey was the sole proprietor of

M/s. Gurmeet Singh Sehmbey and Sons.

8.18 Therefore, the said Assignment Deed dated 25

th

May, 2006 has been

executed by Mr. Iqbal Singh Sehmbey, both as the assignor and assignee,

without executing the signatures of other partners of the aforesaid

partnership firm, i.e., M/s. Jodh Singh Sehmbey and Sons.

8.19 Subsequently, respondent no. 1 got the alleged assignment from Mr.

Iqbal Singh Sehmbey, who claimed to be sole proprietor of M/s. Gurmeet

Singh Sehmbey and Sons. However, at the time of the assignment, Mr. Iqbal

Singh Sehmbey was not the registered proprietor of the impugned mark

“BADAL”.

8.20 Respondent no. 1 claims ownership/proprietorship of the impugned

mark “BADAL” by virtue of the Assignment Deed dated 12

th

April, 2011.

However, the assignor of the said Deed, i.e., Mr. Iqbal Singh Sehmbey

trading as M/s. Gurmeet Singh Sehmbey and Sons, had never come on

C.O. (COMM.IPD-TM) 150/2021 Page 8 of 27

record as the registered proprietor of the impugned mark, but had merely

claimed to be the lawful owner of the impugned trademark “BADAL”.

8.21 In the suit against the petitioner, i.e., Civil Suit bearing no.

CS/10/2015 before the District Court, Jind, Haryana, respondent no. 1

claimed ownership of the impugned registered mark “BADAL” by way of

the Assignment Deed dated 12

th

April, 2011, however, before the Registry of

the Trade Marks, an entirely different Assignment Deed dated 12

th

April,

2011 was filed.

8.22 Thus, respondent no. 1‟s ownership over the impugned trademark

“BADAL” is on the basis of the Assignment Deed dated 12

th

April, 2011,

however, the said Assignment Deed itself is invalid and has no force in law.

8.23 One Mr. Dewan Bal Krishan also claims assignment from the same

assignor, i.e., M/s. Jodh Singh Sehmbey and Sons through another

Assignment Deed dated 14

th

August, 2006 for the mark “BADAL”, which is

prior to Assignment Deed in favour of the respondent no. 1, i.e., Hindustan

Technocast (P) Limited.

8.24 Thus, the petitioner, in the present case, is aggrieved by the impugned

registration of the trademark “BADAL”. It is the case of the petitioner that

on the basis of false claim of ownership/proprietorship over the impugned

mark, respondent no. 1 has filed a suit, i.e., Civil Suit bearing no.

CS/10/2015, in the District Court, Jind, Haryana, seeking permanent

injunction for restraining use of the mark “GHANGHOR BADAL” by the

petitioner, alleging that the said use amounts to infringement and passing

off.

8.25 Hence, the present rectification has been filed.

C.O. (COMM.IPD-TM) 150/2021 Page 9 of 27

9. I have heard the learned counsel for the petitioner and have perused

the documents and evidence placed on record.

10. The petitioner herein is aggrieved by the impugned registration in

favor of respondent no. 1 for the trademark “BADAL”, bearing registration

no. 554483, for rectification of which, the present petition has been filed.

11. It is further noted that respondent no. 1 has filed a Civil Suit bearing

no. CS/10/2015, seeking injunction to restrain the petitioner from using the

trademark “GHANGHOR BADAL”, on the grounds of alleged infringement

and passing off. On the basis of an order passed by the Court in the said civil

suit under Section 124 of the Trade Marks Act, the present petition has come

to be filed.

12. This Court notes that petitioner herein is the proprietor of the

trademark “GHANGHOR BADAL” (word mark) in Class 07, registered on

13

th

January, 2017 and bearing registration no. 2611791, with date of

application being 14

th

October, 2013.

13. The claim of the petitioner herein is that the impugned mark

“BADAL” was fraudulently obtained by respondent no. 1 through an

Assignment Deed dated 12

th

April, 2011, executed by one Mr. Iqbal Singh

Sehmbey, who purportedly assigned the mark to respondent no. 1, claiming

to be the sole proprietor of the proprietorship, M/s. Gurmeet Singh Sehmbey

and Sons. However, it is alleged that at the time of assignment, Mr. Iqbal

Singh Sehmbey was not the registered proprietor of the impugned mark

“BADAL”.

14. It is to be noted that the proprietorship of Mr. Iqbal Singh Sehmbey in

the impugned mark “BADAL” has not been challenged by the other

C.O. (COMM.IPD-TM) 150/2021 Page 10 of 27

members of the HUF or the partnership, of which Mr. Iqbal Singh Sehmbey

was a part. The effect of the Assignment Deed dated 25

th

May, 2006 in

favour of Mr. Iqbal Singh Sehmbey, wherein, it is alleged by the petitioner

that he was both the assignor and the assignee, would have to be tested by

leading evidence in that regard. There is no document before this Court that

the ownership of Mr. Iqbal Singh Sehmbey has been disputed by any party

in any manner. In the absence of any such fact or document before this

Court, no prima facie view can be formed by this Court merely on the basis

of documents before this Court or on the basis of averments made by the

petitioner before this Court.

15. A perusal of the documents placed on record shows that the

registration of the impugned mark, i.e., “BADAL” was initially obtained

from the Registrar of Trade Marks by virtue of an application dated 15

th

July, 1991 filed by the partnership firm, i.e., M/s. Jodh Singh Sehmbey and

Sons, which consisted of three partners, i.e., Mr. Iqbal Singh Sehmbey, Mr.

Sukhminder Singh Sehmbey, and Mr. Tejinder Singh Sehmbey.

16. Subsequently, M/s. Jodh Singh Sehmbey and Sons had filed a Form

TM-16 on 17

th

May, 2006 which was taken on record by the Registry on 16

th

June, 2006, before the Registrar of Trade Marks seeking correction of a

clerical error in the initial Form TM-1, i.e., the application for registration of

trademark “BADAL”, stating that the partnership firm was, in fact, owned

by the HUF of S. Gurmeet Singh Sehmbey, acting through its Karta, i.e., Mr.

Iqbal Singh Sehmbey, and that due to an error the three partners of the said

HUF were mistakenly shown as the partners in the said application. Thus,

they filed Form TM-16 seeking to rectify the name of the proprietor of the

C.O. (COMM.IPD-TM) 150/2021 Page 11 of 27

trademark, to be solely recorded as Mr. Iqbal Singh Sehmbey, without

inclusion of the other partners or the partnership firm, as he was the Karta of

the HUF. Further, it was submitted in Form TM-16 that the partnership had

dissolved, and a deed of dissolution was attached to substantiate the same.

The said Form TM-16, as extracted from the website of Trade Marks

Registry, is reproduced as under:

17. Consequently, Mr. Iqbal Singh Sehmbey assigned the mark

“BADAL” by way of Assignment Deed dated 25

th

May, 2006, from the

partnership firm to the proprietorship firm, i.e., M/s. Gurmeet Singh

C.O. (COMM.IPD-TM) 150/2021 Page 12 of 27

Sehmbey and Sons, wherein, Mr. Iqbal Singh Sehmbey was the sole

proprietor. Thereafter, he had also initiated steps for entering his name in the

Register of Trade Marks and accordingly, filed a Form TM-24 dated 16

th

June, 2006, requesting that his name be entered in the Register of Trade

Marks as a proprietor of the trademark “BADAL” by virtue of the said

Assignment Deed dated 25

th

May, 2006, assigning the said mark to M/s.

Gurmeet Singh Sehmbey and Sons through its proprietor, i.e., Mr. Iqbal

Singh Sehmbey. The said TM-24 Application is reproduced as under:

18. Perusal of the aforesaid documents filed on behalf of Mr. Iqbal Singh

Sehmbey, does not prima facie cast any doubt on the ownership of the mark

C.O. (COMM.IPD-TM) 150/2021 Page 13 of 27

“BADAL” by the said Mr. Iqbal Singh Sehmbey. Merely because no final

order was passed by the Trade Mark Registry on the application of the said

Mr. Iqbal Singh Sehmbey for registration of the name solely in his favour,

does not in any manner detract from the fact that the said Iqbal Singh

Sehmbey, being karta of HUF and partnership, was the owner of the mark in

question. As noted above, there is no document before this Court and no

factual assertion has been made before this Court that the other members of

the partnership firm or the HUF, have disputed the ownership of Mr. Iqbal

Singh Sehmbey to the mark “BADAL”, in any manner. Therefore, assertions

of fraud made on behalf of the petitioner, cannot be accepted by this Court

on the face of it.

19. This Court further takes note of the Assignment Deed dated 12

th

April,

2011, executed by Mr. Iqbal Singh Sehmbey in favour of respondent no. 1,

for a consideration of Rs. 20,000/-. The said Assignment Deed was duly

filed before the Trade Marks Registry by respondent no. 1, and on the basis

thereof, the impugned trademark “BADAL” came to be transferred in favour

of the respondent no. 1. The petitioner has placed on record two Assignment

Deeds of the same date, i.e., 12

th

April, 2011, in favour of respondent no.1

by Mr. Iqbal Singh Sehmbey. The fact as to how two different Assignment

Deeds of the same date came to be filed by respondent no.1 before the Trade

Mark Registry and in the suit proceedings, is again a fact which would have

be adjudicated after trial and leading evidence in regard thereto. Further, the

effect of filing of such two separate Assignment Deeds by respondent no. 1,

would again have to be determined after trial, by taking into account the

evidence led on that behalf.

C.O. (COMM.IPD-TM) 150/2021 Page 14 of 27

20. It is to be noted that the website of Trade Marks Registry records

respondent no. 1, i.e., Hindustan Technocast (P) Ltd., as the proprietor of the

impugned mark, “BADAL”. Further, respondent no. 1 applied for renewal of

the trademark in question, by filing Form TM-R dated 06

th

May, 2025,

which was subsequently allowed, and the impugned mark is now valid/

renewed till 15

th

July, 2035 in favor of respondent no. 1. The document

showing particulars of renewal in favor of respondent no. 1, is reproduced as

under:

C.O. (COMM.IPD-TM) 150/2021 Page 15 of 27

21. The petitioner has made two-fold contentions towards challenging the

Assignment Deeds in question which form the basis of the present

rectification petition. Firstly, the Assignment Deed dated 25

th

May, 2006 is

not valid on account of Mr. Iqbal Singh Sehmbey being the assignor and

assignee for the same. Secondly, Assignment Deed dated 12

th

April, 2011 in

favor of respondent no. 1 is not valid as two different Deeds have been

placed to show the same transfer and the genuiness of the signature in the

Assignment Deeds is also disputed, including, the number of Clauses in each

Assignment Deed which are filed before the Trade Marks Registry and the

Trial Court.

22. As noted hereinabove, the questions raised before this Court in the

present petition are substantial questions of law and facts that require

evidence to be led on part of the parties. The documents that form basis of

the challenge, i.e., Assignment Deeds, have been challenged qua their

genuineness and authenticity. However, adjudication of the said issues raised

by the petitioner herein would require trial, and such questions are required

to be raised before an appropriate forum.

23. It is well settled that allegations of fraud are serious allegations and

whenever a party pleads to an allegation of fraud, that party himself has to

set forth and substantiate the particulars of fraud. Further, the degree of

proof that is required to prove such allegations is almost akin to the proof of

“beyond reasonable doubt”, and merely making averments in the pleadings,

without placing sufficient evidence to substantiate that allegation, will not be

adequate enough for the Court to take notice of the same. Thus, the Division

Bench of this Court in the case of Safari International & Another Versus

C.O. (COMM.IPD-TM) 150/2021 Page 16 of 27

Subhash Gupta and Others, 2008 SCC OnLine Del 1767, while dealing

with allegations centered around fraud played by the respondents therein on

the Registrar of Trade Marks, has held as follows:

“xxx xxx xxx

8. The respondent had been using the trade mark „SAFARI‟ since 1974 for

the cycles manufactured under his sole proprietorship concern M/s.

Shagun Udyog. In the year 1979 he applied for registration of the said

mark and registration certificate was issued in the year 1988. During the

pendency of the said application, in 1981 respondent No. 1 incorporated a

private limited company with his brother as the Director having equal

share, under the name „Safari Cycles Private Limited‟. There is no dispute

to the fact that the said company did not function till 1984. It is also a fact

that respondent No. 1 continued the business in his individual capacity.

Later, in the year 1984, on resignation of the respondent No. 1's brother

them Safari Cycles Private Limited by transferring his shares in the name

of respondent No. 1 and his wife, the respondent No. 1 alongwith his wife

became shareholders of the said company with 70.30 shareholding.

Therefore for all practical purposes, the respondent No. 1 was running the

aforesaid company being the major shareholder whereas the remaining

30% shares were owned by none other than his wife, making the company

a family concern. From January, 1985 the business activities of

manufacture and sale of goods under the trade mark „SAFARI‟ were taken

over by the said private limited company. When the respondent No. 1 made

the statement before the Registrar in 1986, he alongwith his wife was the

owner of the company which was using the trademark. It can be safely

assumed that he being the managing force of the company, he might have

stated that he is the proprietor of the trade mark, without any intention to

deceive anybody as none others were using the said trade mark. In fact

the Appellate Board found that the appellant herein did not put forth

any plea to the effect that the respondent had any intention to deceive

anybody when he stated so. The Appellate Board also recorded that it

was also not the case of the appellant herein that the respondent No. 1

herein is using the trade mark which belongs to any other third party

and played fraud in claiming the ownership of such trade mark to the

detriment of the real owner. We also agree with the conclusion recorded

by the Appellate Board that in the absence of any details to establish the

allegation of fraud, the said contention was liable to be rejected. In this

context we may also refer to the Judgment of the Supreme Court in the

case of A.C. Ananthaswamy v. Boraiah (Dead) by LRs, (2004) 8 SCC

588 wherein the Supreme Court has held that fraud pleaded has to be

proved. The Court in para-5 of the said judgment observed:

C.O. (COMM.IPD-TM) 150/2021 Page 17 of 27

“………….. Fraud is to be pleaded and proved. To prove fraud, it

must be proved that representation made was false to the knowledge

of the party making such representation or that the party could have

no reasonable belief that it was true. The level of proof required in

such case is extremely higher. An ambiguous statement cannot per

se make the representator guilty of fraud. To prove a case of fraud, it

must be proved that the representation made was false to the

knowledge of the party making such representation. (See : Pollock &

Mulla : Indian Contract & Specific Relief Acts (2001) 12th Edn. p.

489)”.

9. In the present case, except for stating in the statement of the case that

the impugned registration was obtained by playing fraud on the

Registrar of Trade Mark as well as the honest members of the trade and

business, no material was placed on record to support the said claim. It

is also pertinent to mention that the respondent No. 1 did not derive any

advantage on the assumption of the trade mark „SAFARI‟ from the

proprietorship concern to the private limited company as the private

limited company was again a family concern of respondent No. 1. For

establishing the allegation of fraud the appellant should have placed on

record sufficient and cogent evidence. In the present case there are no

details given as to how the fraud of the nature alleged was committed. In

our considered opinion no fraud could be deduced on the part of

respondent No. 1 on the basis of the pleadings available on record.

Pleadings that have been advanced to establish fraud are mere surmises

and conjectures. Thus, the findings recorded by the Registrar that there

was fraud committed, therefore, was rightly not accepted by the Appellate

Board as also by the learned Single Judge.

xxx xxx xxx”

(Emphasis Supplied)

24. The contention raised by the petitioner that the pleadings in the

present petition are deemed to be admitted as the same have remained

uncontested, and consequently, admitted by respondent no. 1, nonetheless

requires the petitioner to prove its case and substantiate the claim of fraud

committed by respondent no. 1, if any.

25. In the present case, despite the respondent no. 1 not putting forth a

reply and the pleadings of the petitioner being un-rebutted and

C.O. (COMM.IPD-TM) 150/2021 Page 18 of 27

uncontroverted, the same does not discharge the burden upon the petitioner

to prove the veracity of their claims. This Court is enjoined to nevertheless

test the bona fide of the claims put forth by the petitioner, and upon

consideration towards the correctness of the same, pass a judgment.

26. Holding that a plaintiff must succeed on the basis and on the strength

of his own case, and not on the strength of deficiencies in defendant‟s case,

this Court in the case of Sunil Sood Versus Shri Krishna Builders and

Others, 2018 SCC OnLine Del 11204, has observed as follows:

“xxx xxx xxx

16. …

(ii) This argument has also been rejected by the trial court as meaningless

in terms of the detailed discussion in para 26 of the impugned judgment

holding that the provision of Section 346 of Delhi Municipal Corporation

Act, 1957 does not bar transfer of a property/execution of the Sale Deed

without there being a completion certificate. Also, this argument is only a

ruse because I asked the counsel for the appellant/plaintiff as to what is

the illegality in the construction because if the construction is illegal then

a notice would have been issued by the MCD for demolition of the

property and in response to this, counsel for the appellant/plaintiff agreed

that compounding charges were paid and construction was regularized.

Once that is, merely because there is no completion certificate, it would

not mean that respondent no. 1/defendant no. 1/builder has committed

breach of the Agreement to Sell and that the appellant/plaintiff was not

bound to be ready and willing to perform his part of the Agreement to Sell.

The relevant para 25(already reproduced above) and para 26 of the

impugned judgment of the trial court read as under:—

“26. Plaintiff pointed out that clause - 1 of MOU (Ex.

PW1/2) stipulated that construction would be done after

obtaining the plan sanctioned from the MCD/concerned

department. Basing this argument on this clause, he urged

that defendants no. 1 and 2 could possibly not have

transferred 1st floor portion to him without the requisite

„completion certificate‟ as contemplated in section 346,

Delhi Municipal Corporation Act (for short „DMC Act‟).

This argument too is meritless. There was no clause

C.O. (COMM.IPD-TM) 150/2021 Page 19 of 27

regarding completion certificate in the agreement to sell

Ex. PW1/1 or MOU Ex. PW1/2. Even proceeding from the

premise that completion certificate was a statutory

requirement, yet the plaintiff has no case to make out. It has

been observed hereinabove that plaintiff was neither ready

nor willing to perform his part of the contract. Therefore,

when the plaintiff himself was not ready and willing, he

cannot then shift the blame to the other side for the ultimate

failure of the deal. Had the plaintiff in the very first place

proved his readiness and willingness, then the question of

compliance or otherwise of section 346, DMC Act would

have come into the picture. Plaintiff being himself at fault

cannot therefore point fingers at defendants no. 1 and 2 for

their alleged non-compliance of section 346, Delhi

Municipal Corporation Act. In other words, question of

compliance or non-compliance of this provision and its

effect on the outcome of the present suit would come into

the picture only when the plaintiff proves in the first place

that he was ready and willing to perform his part of the

contract. Even assuming that there was non-compliance of

this provision, yet the plaintiff cannot be held entitled to the

relief of specific performance as sought for. It is the

plaintiff's suit that would face an adverse outcome if he

does not prove the existence of facts, which he asserts

(section 101, Evidence Act). Plaintiff avers readiness and

willingness on his part and therefore it is he who must

prove it in terms of section 101, Evidence Act. Plaintiff

cannot seek to prove his case in an indirect manner by

urging that defendants' case has a certain deficiency or

that there has been non-compliance of a certain legal

provision on their part. Plaintiff cannot succeed on the

basis of failure, if any, on the part of a defendant to prove

his case and plaintiff must stand on its own legs. To put it

in other words, a plaintiff must succeed on the basis and

on the strength of his own case and not on the strength of

deficiencies, if any, in defendant's case. He cannot raise

the edifice of his case by highlighting the

deficiencies/loopholes in defendants' case. In this regard,

the following decisions can be referred to: Sankar Kumar

v. Mohanlal Sharma, AIR 1998 Ori 117; Shiv Nandan

Sachdeva (Sh.) v. Smt. Ruby, 2009 V (Delhi) 55; Umesh

Bondre v. Wilfred Fernandes, AIR 2007 Bom 29; M.P.

Narayan v. Sm. Sudhadevi, AIR 1986 Cal 256; State of

West Bengal v. Subimal Kumar Mondal, AIR 1982 Cal

C.O. (COMM.IPD-TM) 150/2021 Page 20 of 27

251 and Sayed Muhammed Mashur Kunhi Koya Thangal

v. Badagara Jumayath Palli Dharas Committee, (2004) 7

SCC 708 : JT (2004) 6 SC 556. …….

xxx xxx xxx”

(Emphasis Supplied)

27. Similarly, in the case of Devender Bhati Versus Chander Kanta, 2015

SCC OnLine Del 14224, it has been held as follows:

“xxx xxx xxx

37. In Harish Mansukhani (supra), the Division Bench noticed that the

plaintiff has to prove his case and had to stand on his own legs.

Similarly, in Ganpatlal (supra), the Madhya Pradesh High Court took

note of the elementary rule of civil litigation in this country that the

plaintiff must stand or fall on the strength of his own case. Thus, the

failure of the defendant to establish that the market monthly rent of the suit

property was not Rs. 5,000/- p.m., by itself, would not amount to a proof of

the plaintiffs claim of damages of Rs. 5,000/- p.m.

xxx xxx xxx”

(Emphasis Supplied)

28. The doctrine that a plaint/petition must stand on its own legs is a

fundamental principle of law, which emphasizes that a plaintiff/petitioner

must substantiate its claims with credible evidence, irrespective of the

weakness in the case of the defendant/respondent.

29. Thus, the Supreme Court in the case of Asma Lateef and Another

Versus Shabbir Ahmad and Others, (2024) 4 SCC 696, held that mere

failure on the part of the defendants therein to file a written statement would

not be ipso facto sufficient to pronounce the judgment against the

defendants, therein. It was observed that, before passing a judgment against

the defendants, it must be seen that even if the facts set out in the plaint are

treated to have been admitted, whether a judgment could possibly be passed

in favour of the plaintiff, without requiring him to prove any fact mentioned

C.O. (COMM.IPD-TM) 150/2021 Page 21 of 27

in the plaint. Therefore, in such a case the plaintiffs therein were under an

obligation to substantiate and prove their case. The relevant paragraphs of

the said judgment are reproduced herein below:

“xxx xxx xxx

27. At this stage, we consider it apposite to take a quick look at Balraj

Taneja (supra) to examine the scope of Rule 10 of Order VIII. Therein,

this Court ruled that a court is not supposed to pass a mechanical

judgment invoking Rule 10 of Order VIII, CPC merely on the basis of

the plaint, upon the failure of a defendant to file a written statement. The

relevant paragraphs of the judgment are reproduced below for

convenience:(SCC p. 410, para 29)

“29. As pointed out earlier, the court has not to act blindly upon the

admission of a fact made by the defendant in his written statement

nor should the court proceed to pass judgment blindly merely

because a written statement has not been filed by the defendant

traversing the facts set out by the plaintiff in the plaint filed in the

court. In a case, specially where a written statement has not been

filed by the defendant, the court should be a little cautious in

proceeding under Order 8 Rule 10 CPC. Before passing the

judgment against the defendant it must see to it that even if the facts

set out in the plaint are treated to have been admitted, a judgment

could possibly be passed in favour of the plaintiff without requiring

him to prove any fact mentioned in the plaint. It is a matter of the

court's satisfaction and, therefore, only on being satisfied that there

is no fact which need be proved on account of deemed admission,

the court can conveniently pass a judgment against the defendant

who has not filed the written statement. But if the plaint itself

indicates that there are disputed questions of fact involved in the

case regarding which two different versions are set out in the plaint

itself, it would not be safe for the court to pass a judgment without

requiring the plaintiff to prove the facts so as to settle the factual

controversy. Such a case would be covered by the expression „the

court may, in its discretion, require any such fact to be proved‟ used

in sub-rule (2) of Rule 5 of Order 8, or the expression „may make

such order in relation to the suit as it thinks fit‟ used in Rule 10

Order 8.”

No doubt this decision was rendered considering that the verb used in the

provision is “may”, but nothing substantial turns on it.

C.O. (COMM.IPD-TM) 150/2021 Page 22 of 27

28. What emerges from a reading of Balraj Taneja (supra), with which

we wholeheartedly concur, is that only on being satisfied that there is no

fact which need to be proved on account of deemed admission, could the

court pass a judgment against the defendant who has not filed the

written statement; but if the plaint itself suggests involvement of disputed

questions of fact, it would not be safe for the court to pass a judgment

without requiring the plaintiff to prove the facts. Balraj Taneja (supra)

also lays down the law that provision of Rule 10 of Order VIII, CPC is

by no means mandatory in the sense that a court has no alternative but

to pass a judgment in favour of the plaintiff, if the defendant fails or

neglects to file his written statement.

xxx xxx xxx

34. We find close resemblance of the facts and circumstances under

consideration in Swaran Lata Ghosh v. H.K. Banerjee [Swaran Lata

Ghosh v. H.K. Banerjee, (1969) 1 SCC 709]. A money suit instituted by the

respondent before this Court was tried by the High Court of Calcutta and

after taking evidence the learned Single Judge on 17-8-1962, passed the

following order:

“There will be a decree for Rs 15,000 with interest on judgment on Rs

15,000 at 6% p.a. and costs. No interim interest allowed.”

Pursuant to that order a decree was drawn up. An appeal carried from the

decree before the Division Bench failed. The Division Bench assigned

sketchy reasons for the conclusion that the trial court “rightly decreed the

suit” and disposed of the appeal with certain modification of the decree.

While allowing the appeal and setting aside the decree passed by the High

Court and remanding the suit to the court of first instance for trial

according to law, this Court noted that Rules 1 to 8 Order 20CPC are, by

the express provision contained in Order 49 Rule 3(5)CPC inapplicable to

a Chartered High Court in the exercise of its ordinary or extraordinary

original civil jurisdiction and hence, a Judge of a Chartered High Court

was not obliged to record reasons in a judgment strictly according to the

provisions contained in Order 20 Rules 4(2) and 5CPC. Notwithstanding

such a provision, this Court proceeded to record in para 6 as follows :

(Swaran Lata Ghosh case [Swaran Lata Ghosh v. H.K. Banerjee, (1969) 1

SCC 709], SCC pp. 711-12)

“6. Trial of a civil dispute in court is intended to achieve, according to

law and the procedure of the court, a judicial determination between

the contesting parties of the matter in controversy. Opportunity to the

parties interested in the dispute to present their respective cases on

questions of law as well as fact, ascertainment of facts by means of

C.O. (COMM.IPD-TM) 150/2021 Page 23 of 27

evidence tendered by the parties, and adjudication by a reasoned

judgment of the dispute upon a finding on the facts in controversy and

application of the law to the facts found, are essential attributes of a

judicial trial. In a judicial trial, the Judge not only must reach a

conclusion which he regards as just, but, unless otherwise permitted,

by the practice of the court or by law, he must record the ultimate

mental process leading from the dispute to its solution. A judicial

determination of a disputed claim where substantial questions of law

or fact arise is satisfactorily reached, only if it be supported by the

most cogent reasons that suggest themselves to the Judge a mere

order deciding the matter in dispute not supported by reasons is no

judgment at all. Recording of reasons in support of a decision of a

disputed claim serves more purposes than one. It is intended to

ensure that the decision is not the result of whim or fancy, but of a

judicial approach to the matter in contest: it is also intended to

ensure adjudication of the matter according to law and the

procedure established by law. A party to the dispute is ordinarily

entitled to know the grounds on which the court has decided against

him, and more so, when the judgment is subject to appeal. The

appellate court will then have adequate material on which it may

determine whether the facts are properly ascertained, the law has

been correctly applied and the resultant decision is just. It is

unfortunate that the learned trial Judge has recorded no reasons in

support of his conclusion, and the High Court in appeal merely

recorded that they thought that the plaintiff had sufficiently proved

the case in the plaint.”

xxx xxx xxx”

(Emphasis Supplied)

30. In the present case, the Court would be all the more cautious in

adjudicating the various submissions raised before this Court, as the

impugned trademark in the present case is shown to have a user since the

year 1945. Thus, the veracity, sanctity and the user of the impugned

trademark since the year 1945, cannot merely be dissolved or set aside, only

on the submissions of the petitioner that the said mark was assigned to

respondent no. 1, in a fraudulent and fabricated manner, when the said issues

themselves would have to be established during the course of trial.

C.O. (COMM.IPD-TM) 150/2021 Page 24 of 27

31. This Court notes that the petitioner has neither contended the non-user

of the impugned mark nor has it claimed any similarity between competing

registered trademarks. Rather, it is the case of the petitioner that both the

trademarks are different and distinct, which has been accepted by the

Registrar of the Trade Marks, while granting the registration to the petitioner

for its mark, „GHANGHOR BADAL‟, whilst citing the mark of respondent

no. 1, „BADAL‟ as an objection in the Examination Report.

32. The impugned mark “BADAL” under Class 07 has been in use since

the year 1945, which is much prior to the mark of the petitioner, i.e.,

“GHANGHOR BADAL”, which has a user detail of 15

th

April, 2002. A

mark with a prior use dating back to 1945, and which has been in use for

such a substantial period of time, requires a higher degree of caution and

proof on part of the party alleging fraud, and cannot solely be

cancelled/rectified on the basis of the documents filed before this Court and

the submissions of the petitioner, which do not prima facie establish the

facts as raised by the petitioner.

33. At this stage, this Court also takes note of the order passed by the

Copyright Board at Mumbai in Devico (India) Iron Foundry and

Engineering Works Versus Iqbal Singh, 2007 SCC OnLine CB 2, wherein,

an application for rectification on the same ground as made in the present

petition was filed by the applicant therein, against Mr. Iqbal Singh Sehmbey

for rectification of Register of Copyrights, wherein, the Copyright Board

refused to enter into disputed questions and observed as follows:

“xxx xxx xxx

6. We are strictly concerned with the issues relating to the registration of

mark BADAL TOKA as an artistic work under registration number A-

C.O. (COMM.IPD-TM) 150/2021 Page 25 of 27

61170/2002. Registration of the copyright stands in the joint names of

the assignor and the assignee referred to above wherein Shri Jodh Singh

is the karta of the assignor HUF and the same Shri Jodh Singh is the

sole proprietor of the assignee firm. Copy of the Trade Mark Journal

dated 1st March, 1955 submitted by the petitioner refers to M/s Jodh

Singh Sehmbey and Sons having made trade mark registration

application number 166789 dated 25th November, 1954. Undisputedly

the petitioner has conceded that the respondent are in the Toka business

since 1954 when they had made initial application for trade mark

registration with the word mark BADAL TOKA. The artistic work in

question is in oval shape with the name of the firm, M/s Jodh Singh

Sehmbey & Sons, G.T. Road, Goraya, Distt. Jalandhar (Pb) in the ring

with the words BADAL TOKA in Urdu in the centre. The mark PARKASH

BADAL as inscribed on the photos of the machines submitted by the

petitioner is in plain words written either in Hindi or English. Further,

counsel for the petitioner has not assailed the originality of the artistic

work of the respondent. Rather, the petitioner has submitted that in any

case the artistic works of the petitioner and the respondent are different

from each other. Learned counsel for the petitioner has questioned the

certificate given by the Trade Marks Registrar under section 45 of the

Copyright Act, 1970 wherein the Registrar has certified as to the

resemblance of the impugned artistic work with the trade mark standing

registered in the name of the respondent and none else. Any grievance

against the decision of the Registrar of Trade Marks has to be addressed

to the appropriate forum under the Trade Mark law, that is, before 15th

September,2003 to the concerned High Court and as from 15th September,

2003 to the Intellectual Property Appellate Board. This Board cannot call

into question the appropriateness of the decision of the Registrar of Trade

Marks.

7. In conclusion, we find no merit in the application of the petitioner for

rectification and the same stands dismissed. No orders as costs.”

(Emphasis Supplied)

34. Learned counsel appearing for petitioner during his oral arguments

has relied upon the judgment passed by this Court in Anshul Vaish, Partner

Rohit Wrapers Versus Hari Om and Co. and Another, 2025 SCC OnLine

Del 664 to state that this Court has the jurisdiction to deal with the issues

and allegations pertaining to fraud while dealing with a rectification petition.

More specifically, learned counsel of the petitioner to buttress his arguments

C.O. (COMM.IPD-TM) 150/2021 Page 26 of 27

has relied upon paragraph nos. 6 to 8 of the said judgment dated 07

th

February, 2025, which are reproduced as under:

“xxx xxx xxx

6. Having heard learned counsels for the parties and having perused

the record, this Court at the outset notes that the documents filed by

respondent no. 1 to prove its user, have prima facie and glaring

anomalies, as indicated by the addition of a Taxpayer Identification

Number (“TIN No.”) to the invoices of the years 2005 and 2006, when

the same was granted only in the year 2007.

7. On a pointed query by this Court to the counsel for respondent no. 1 as

to how the Sales Invoice show the TIN Number from the year 2005, when

it was granted only in the year 2007, the counsel for the respondent no. 1

did not have any explanation for the same.

8. Thus, this Court is in agreement with the submission made by the

petitioner that the documents adduced by respondent no. 1 to prove the

user of the impugned mark from the year 2005, are apparently forged

and fabricated.

xxx xxx xxx”

(Emphasis Supplied)

35. It is to be noted that in the aforesaid judgment passed by this Court,

the documents filed by the respondent therein had glaring anomalies as

regards the date of user of the said mark, which made it manifestly clear that

the documents filed by the respondents therein, were forged and fabricated.

However, in the present case, the contentions of fraud in obtaining the

registration of the impugned trademark, as raised by the petitioner does not,

on the face of it, establish and substantiate the veracity of its claims.

36. The petitioner has also relied upon the judgment dated 13

th

April,

2009 passed in Gandhi Scientific Company Versus Gulshan Kumar, 2009

SCC OnLine Del 820 and the judgment dated 21

st

January, 2019 in Khushi

Ram Behari Lal Versus Jaswant Singh Balwant Singh, 2019 SCC OnLine

C.O. (COMM.IPD-TM) 150/2021 Page 27 of 27

Del 6702. However, the said cases, as relied upon by the petitioner, are

clearly distinguishable and do not apply to the facts and circumstances of the

present case. In the said cases, the Court had observed that a clear case of

res ipsa loquitor was made out as the documents clearly showcased the

manipulations done by the defendants therein and the documents on the face

of it, were found to be false and fabricated. However, no such finding can be

given in favor of the petitioner with regard to the genuineness and the

authenticity of documents in question in the present case, considering the

detailed discussion hereinabove.

37. In view of the detailed discussion hereinabove, this Court is of the

view that the impugned trademark “BADAL”, bearing registration no.

554483, with prior use dating back to 01

st

January, 1945, cannot be cancelled

on the grounds of fraud and fabrication of documents, without testing the

authenticity and genuineness of the same, on the basis of evidence before the

Trial Court.

38. Accordingly, the present petition is dismissed.

(MINI PUSHKARNA)

JUDGE

JULY 9, 2025/KR